Law Dor v. The National Insurance Co Ltd

Read the full judgment text of HCA 2003/1976 on BabelCite. This High Court CFI judgment.

1. This action raised two short points of law. It is thought that they may be of general interest and I have been asked accordingly to record written reasons for my conclusions.

Case No.HCA 2003/1976
Court
High Court CFI
Date
Judge
Case Document
100%Judiciary

HCA002003/1976

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

ACTION NO.2003 OF 1976

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BETWEEN    
  LAW Dor Plaintiff
  and  
  THE NATIONAL INSURANCE COMPANY LIMITED Defendant

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Coram: Cons, J.

Date of Judgment: 14th February, 1977.

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JUDGMENT

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1. This action raised two short points of law. It is thought that they may be of general interest and I have been asked accordingly to record written reasons for my conclusions.

2. The first question is whether a learner driver is covered by the usual proviso in motor insurance policies when he is driving without "L" plates affixed to his motor-cycle. The proviso is as follows:

"Provided that the person driving is permitted in accordance with the licensing or other laws and regulations to drive the motor cycle or has been so permitted and is not disqualified by order of a court of law or by reason of any enactment or regulation in that behalf from driving the motor-cycle."

3. This question is already covered by authority in this jurisdiction: Lee Shiu-ting v. Reg.(1) and Chan King-lam v. Reg.(2). The learner driver is not covered. The laws and regulations do not permit him to drive in that manner. They expressly prohibit him.

4. Both these cases were derived from criminal prosecutions for driving without insurance cover. The decisions were those of single judges of this court on appeal from the magistrate. No attempt has been made to distinguish them as such but it is suggested that a different principle should be applied in civil cases from that applied in criminal. No reason has been advanced why this should be so.

5. There is a decision of an English County Court in a civil case which goes the opposite way: Rendlesham v. Dunne(3). The judge described the contention accepted here a year later as "surprising". It may be that the nature of a provisional licence in England or the law relating thereto is different from ours. I do not know. It is sufficient to say that the decision was shown to the court in the latter of the two cases I have just mentioned and that the court rejected it in favour of the earlier. I am content to do likewise.

6. The second question is not covered by authority. The plaintiff was injured by the motor-cycle in January 1973. A notice under s.10(2) (a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap.272, was sent to the appropriate insurance company in the August. In December an action against the owner and driver was started in the Victoria District Court. That action was discontinued two years later, but a second action was started almost immediately in the same court. Eventually judgment was given in favour of the plaintiff. No fresh notice under the Motor Vehicles Insurance (Third Party Risks) Ordinance was given either before or after the commencement of the second action. The question is whether the notice given before the first action was sufficient to cover the second.

7. Section 10 of the Ordinance makes an insurance company liable to meet judgments in certain circumstances and then provides in subsection 2(a):

"(2) No sum shall be payable by an insurer under the foregoing provisions of this section -

  (a) in respect of any judgment, unless before or within seven days after the commencement of the proceedings in which the judgment was given, the insurer had notice of the bringing of the proceedings;".  

8. It is the use of the word "before" that allows the question to arise. If the notice is given after the commencement of the proceedings the notice will naturally specify the court in which the proceedings are brought and the particular number of the action. Then it cannot possibly be said to cover any subsequent or different action. It will operate as to that particular action alone. But if the notice is given before the proceedings are commenced there is no action yet in existence as to which it can operate. That must wait until some particular action is started. The plaintiff submits that once a notice is given it will continue to operate as to any action that is subsequently started, even where, as in this case, there is more than one. The insurance company submits that this cannot be so. It is illogical, it says, to say that there has been notice of "the proceedings in which the judgment was given" when the notice was so obviously given in the proceedings which were discontinued. In my view that is the better opinion. The notice must be taken to operate as to the first action brought subsequently and is thereafter spent. This view is more consistent with what I take to be the general intention of the section, that the insurance company should be informed of what the plaintiff is doing, so that it should not be taken by surprise.

Representation:

Michael Asome (Director of Legal Aid) assigned for the plaintiff.

Richard Mills-Owens (Johnson, Stokes & Master) for the defendant.

(1) [1965] H.K.L.R. 1140

(2) [1972] 2 H.K.L.J. 233

(3) [1964] 1 L1.L.R. 192